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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-06-20 Daily Xml
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Bills

Office for the Ageing (Adult Safeguarding) Amendment Bill

Introduction and First Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:04): Obtained leave and introduced a bill for an act to amend the Office for the Ageing Act 1995. Read a first time.

Second Reading

The Hon. S.G. WADE (Minister for Health and Wellbeing) (17:05): I move:

That this bill be now read a second time.

The abuse of vulnerable adults, and in particular elder abuse, has been prominent in the media and public consciousness in recent years, and has also been the focus of a number of national and state inquiries.

Sadly, one in 20 older Australians experience some form of abuse, often by someone they know and trust, and usually a family member. Elder abuse can be physical, financial, sexual, chemical, neglect or emotional, with financial and emotional abuse often occurring together. For every one report, it is likely that another five cases remain hidden. The cost to individuals, families, society and government is very significant.

Legislative reform in relation to adult safeguarding was first raised in South Australia in 2011, with the findings of the Closing the Gap report, written by Professor Wendy Lacey. More recently, the recommendations of the Australian Law Reform Commission's inquiring into Protecting the Rights of Older Australians from Abuse and the Final Report of the Joint Committee on Matters Relating to Elder Abuse have all called on the government to develop adult safeguarding legislation, including the establishment of a unit focused on the prevention of elder abuse.

But we know that age alone does not make a person vulnerable to abuse, neglect or harm. It is the combination of age—whether advanced age or the fact that child protection laws no longer apply—combined with other factors, which make a person vulnerable. This may be ill health, disability, cognitive dysfunction or dementia, dependence on others for one's care, mobility or day to day lifestyle challenges or even social isolation. Age, combined with one of these factors, is what makes an adult potentially vulnerable to abuse or harm. All vulnerable adults deserve to have their rights safeguarded and to live a life of dignity and autonomy as far as is possible or practical.

That is why, in the lead-up to the state election in March, the Liberal Party made a commitment to progressing reform in this area by introducing legislation into the parliament within the first 100 days of forming government. The former government failed to act over seven years, since the Closing the Gap report. This government has acted within 100 days.

Professor Wendy Lacey, Dean and Head of the School of Law at the University of South Australia, has worked closely with the government to develop the Office for the Ageing (Adult Safeguarding) Amendment Bill 2018. This bill is the first of its kind in Australia and seeks to fill the gaps reported in our current system, in particular the lack of a single government agency with a clear statutory role for safeguarding vulnerable adults who, despite having full decision-making capacity, are experiencing abuse or neglect and are left to navigate complex systems alone. Events relating to the Oakden Older Persons Mental Health Service highlighted the need for safeguarding legislation, and I acknowledge the presence in the gallery today of Oakden families and Professor Lacey.

This bill establishes a new adult safeguarding unit, which will be located in the Office for Ageing Well within the Department for Health and Wellbeing. Previously known as the Office for the Ageing, part 2 of the bill provides for the name of this office to be changed to the Office for Ageing Well, reflecting this government's commitment to combatting ageism by challenging the way ageing is framed in the language and structure of the services our government delivers.

Underpinned by guiding principles that ensure that any actions are premised on respecting a vulnerable person's right to autonomy, dignity and self-determination, the new adult safeguarding unit will complement the role of the police and other government and non-government agencies by providing the South Australian community with an approachable, empowered body, with statutory responsibility and accountability for responding to reports of abuse or neglect of vulnerable adults.

The functions of the adult safeguarding unit are set out in section 15 of the bill. A key focus of the unit will be on the prevention of abuse through awareness raising and community education. However, where reports of alleged or suspected abuse are received, the unit will be responsible for assessing and investigating these reports and then either referring them on to appropriate persons or bodies, or working in collaboration with other agencies to coordinate a multiagency and multidisciplinary approach to responding to concerns in a way that puts the rights of the vulnerable adult at the centre.

Part 4 of the bill provides for the voluntary reporting but mandatory response to a report of abuse or suspected abuse of a vulnerable adult. Mandatory reporting is not an approach that is supported in responding to adults with decision-making capabilities. On receipt of a report, the director of the adult safeguarding unit must assess the report and then make a decision as to whether to carry out an investigation into the matter, refer the matter to an appropriate state authority or other person or body, or decline to take further action.

Sections 18 and 19 of the bill empower authorised officers, who include the director and certain employees of the adult safeguarding unit, with a range of coercive information-gathering powers to enable them to effectively investigate reports of serious abuse, such as the power to require a person to answer questions and produce documents.

Part 4, division 6 of the bill provides for the director of the adult safeguarding unit to apply to the court for an order in circumstances when the director reasonably suspects that a vulnerable adult is at risk of abuse. This includes interim orders. Such orders include authorising or requiring that a vulnerable adult undergo an examination or assessment, or requiring a person to do or refrain from doing something in relation to a vulnerable adult.

To support transparency and accountability of decision-making, a person who is aggrieved by a decision of the adult safeguarding unit or the director made in relation to the safeguarding of a vulnerable adult may have this decision reviewed under part 5. This review will be undertaken by the chief executive in the first instance, with the option of an external review by the Ombudsman available as a secondary step in cases relating to serious abuse.

The adult safeguarding unit will be expected to work closely with other agencies, not duplicating effort but supporting the referral of clients between agencies and services where needed, and coordinating multiagency responses to facilitate the reduction or management of a particular risk of abuse that has been reported in respect of a vulnerable adult. Information sharing will be a key factor in the ability of the unit to perform its functions and is provided for in part 6 of the bill, which also includes circumstances where authorised officers may compel information from others.

It is important to note that the consent of the vulnerable adult must be sought as a matter of principle before any action is taken by the unit. A person with decision-making capacity experiencing abuse or neglect has the right to decline support in cases where no immediate harm is posed to either their life or that of others. Each of us has the right to make decisions for ourselves, even if these decisions are considered by others to be wrong, inappropriate or pose a risk to the person.

The legislation and operation of the unit will be further supported by a charter of the rights and freedoms of vulnerable adults, which will be developed in consultation with vulnerable adults, their carers and families. Regulations and a comprehensive code of practice will also be developed, which will outline in a detailed and practical way how the act is to be implemented and, in particular, how prescribed agencies will work together to fulfil their obligations.

This legislation is the first of its kind in Australia. Given the limited local experience to draw upon, the government proposes to stage the implementation and operationalisation of the act to support the successful delivery of reform. The bill is likely to be proclaimed in early 2019. Decision review processes will not come into operation until 12 months after the commencement of the act.

The safeguarding provisions will apply to vulnerable adults aged 65 years or older, or 50 years or older for Aboriginal or Torres Strait Islanders, only for the first three years of operation. Finally, section 53 of the bill provides for an independent review of the act to be undertaken within its first three years of operation to ensure that the legislation is meeting the needs and expectations of the South Australian community.

In conclusion, I thank some of the many who have championed and contributed to this legislation: my colleagues on the Joint Select Committee on Elder Abuse, including Kelly Vincent, formerly of this place; officers of my department; community advocates; and, the families of Oakden. In particular, I thank Professor Wendy Lacey. When laws are often dubbed with names, this bill could well be called Wendy's law.

Our state continues to deal with the tragedy of Oakden. While we attracted national concern for the failures of our services there, may we now take the lead for good. This is the first piece of legislation of its type in Australia. May it add to a wave of reform around the nation to support vulnerable adults. I commend the bill to the council and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Office for the Ageing Act 1995

4—Amendment of section 1—Short title

This clause amends the short title of the principal Act to reflect the change in name from the Office for the Ageing to the Office for Ageing Well.

5—Insertion of sections 2 to 6

This clause substitutes or inserts new sections 2 to 6 as follows:

2—Interpretation

This clause defines terms and phrases used in the principal Act.

3—Meaning of vulnerable adult

This clause defines persons who are vulnerable adults for the purposes of the measure.

4—Meaning of abuse

This clause defines the meaning of abuse for the purposes of the measure.

5—Decision-making capacity

This clause defines the way the question of whether or not a person has decision-making capacity is to be determined for the purposes of the measure.

6—Interaction with Independent Commissioner Against Corruption Act 2012

This clause clarifies that this measure does not limit the operation of the Independent Commissioner Against Corruption Act 2012.

6—Substitution of Part 2

This clause substitutes Part 2 of the principal Act, and inserts new Parts 3 to 7 into that Act, as follows:

Part 2—Office for Ageing Well

7—Office for Ageing Well

8—Objectives of Office for Ageing Well

9—Functions of Office for Ageing Well

10—Delegation

11—Annual report

This Part continues the Office for the Ageing established previously as the Office for Aging Well, and makes minor amendment to reflect the inclusion of the safeguarding functions under this measure.

Part 3—Adult Safeguarding Unit

Division 1—Principles

12—Principles

This clause sets out a number of principles that are to apply in relation to the operation of this Act as it relates to safeguarding vulnerable adults.

Division 2—Adult Safeguarding Unit

13—Separate Adult Safeguarding Unit to be established

This clause requires the CE of the Department to establish a separate Adult Safeguarding Unit within the Department, and sets out procedural matters relating to the Unit.

14—Composition of Adult Safeguarding Unit

This clause provides that the Adult Safeguarding Unit will consist of the Director of the Office for Aging Well and such other Public Service employees assigned or appointed to assist the Director.

15—Functions of Adult Safeguarding Unit

This clause sets out the functions of the Adult Safeguarding Unit under the Act.

16—Delegation

This clause is a standard power of delegation.

17—Annual report

This clause sets out the annual reporting requirements of the Adult Safeguarding Unit.

Division 3—Authorised officers

18—Authorised officers

This clause provides for the authorisation of authorised officers under the measure. The Director is automatically an authorised officer, with the remainder to be members of the Adult Safeguarding Unit authorised by the Director to so act.

19—Powers of authorised officers

This clause sets out the powers that an authorised officer may exercise when investigating matters involving a risk of serious abuse under section 26 of the Act.

Certain powers, such as using force to enter premises, can only be exercised pursuant to a warrant, or in exigent circumstances where the Director has approved the use of the powers.

Part 4—Safeguarding vulnerable adults

Division 1—Charter of the Rights and Freedoms of Vulnerable Adults

20—Charter of the Rights and Freedoms of Vulnerable Adults

This clause requires the Minister, with the support of the Office for Aging Well, to prepare and publish a Charter of the Rights and Freedoms of Vulnerable Adults.

Prescribed State authorities must, in carrying out functions or exercising powers under the Act, have regard to, and seek to give effect to, the Charter.

Division 2—Code of practice

21—Minister may publish codes of practice

This clause provides that the Minister may, by notice in the Gazette, publish codes of practice for the purposes of the Act.

Each prescribed State Authority engaged in the administration, operation or enforcement of the Act must, to the extent that it is reasonably practicable to do so, comply with any relevant code of practice.

Division 3—Reporting suspected risk of abuse of vulnerable adults

22—Reporting suspected risk of abuse of vulnerable adults

This clause provides a mechanism for people to report their suspicions that a particular vulnerable adult has been abused, and remains at risk of abuse or further abuse, or simply is at risk of abuse.

These reports - defined as being reports under the Act - lead to mandatory assessment and require the Director to take certain specified action having assessed the report.

Division 4—Assessment and investigation of reports

23—Assessment

This clause requires the Director to cause each report made under the Act to be assessed. Upon assessment, the Director must then cause at least 1 of the steps set out in proposed subsection (3) to be taken in relation to the report, namely that it be the subject of an investigation, referred to another more appropriate agency or, in limited circumstances, to take no further action.

Records of assessments and actions must be kept, and the clause enables the Director to require a specified person or body to produce a written statement or answer questions in relation to an assessment.

24—Consent of vulnerable adult should be obtained before certain action taken

This clause sets out a key feature of the measure, namely that (except in specified instances such as where there is an immediate threat to life or limb) action should only be taken under this proposed Part where the vulnerable adult consents to the action.

25—Director may refer matter

This clause enables the Director, having assessed a report as required by proposed section 23, to refer the whole or part of the matter to another person or body that the Director considers more appropriately placed to deal with the matter. Matters so referred are required to be dealt with expeditiously.

26—Director may cause circumstances of vulnerable adult to be investigated

This clause enables the Director to cause an investigation of the circumstances of a vulnerable adult to be carried out following an assessment of a report, or in any other circumstances the Director thinks appropriate.

Division 5—Further referral of matters

27—Director may report certain matters to appropriate professional body

This clause provides that the Director may refer instances of profession misconduct or unprofessional conduct uncovered in the course of performing functions under the measure to the appropriated regulatory body.

28—Director may make complaints to Ombudsman

This clause enables the Director to make complaints to the Ombudsman in respect of administrative acts and for those complaints to be dealt with as complaints under the Ombudsman Act 1972.

29—Director may make complaints to Health and Community Services Complaints Commissioner

This clause enables the Director to make complaints to the Health and Community Services Complaints Commissioner on behalf of a vulnerable adult, or a class of vulnerable adults, and for those complaints to be dealt with as complaints under the Health and Community Services Complaints Act 2004.

30—Referral of matters to inquiry agencies etc not affected

This clause clarifies that nothing in this measure prevents a matter from being referred to an appropriate person or body at any time, nor does the referral of a matter of itself prevent the Adult Safeguarding Unit or Director from acting in respect of the matter under this measure.

Division 6—Court orders

31—Director may apply for Court orders

This clause provides that only the Director may apply for an order of the Court under this proposed Division, and when such application can be made.

32—Parties to proceedings

This clause sets out that the parties to an application for orders under the proposed Division are the Director and the vulnerable adult to whom the orders would relate. However, the Court may join other parties to the application in the specified circumstances.

33—Orders that may be made

This clause sets out the kinds of orders that may be made by the Court on application under the proposed Division.

34—Court not bound by rules of evidence

This clause sets out that the Court is not bound by the rules of evidence in respect of proceedings under the proposed Division.

35—Views of vulnerable adult to be heard

This clause endeavours to ensure that the views of the vulnerable adult to whom proceedings relate are heard by the Court.

36—Right of other interested persons to be heard

This clause allows the Court to hear submissions made by certain other people in respect of the vulnerable adult to whom proceedings relate despite those people not otherwise having standing in the proceedings.

37—Contravention of Court order

This clause creates an offence of contravening a term of a Court order imposed under the proposed Division.

Part 5—Reviews of certain decisions

Division 1—Internal review

38—Internal review

This clause provides that an aggrieved person in respect of a decision of the Adult Safeguarding Unit or the Director under Part 4 of this measure may seek review of the decision by the Chief Executive, and makes related procedural provisions.

39—Delegation

This is a standard power of delegation.

Division 2—External review by Ombudsman

40—External review by Ombudsman

This clause provides for an external review by the Ombudsman where a person is dissatisfied on an internal review under proposed section 38. However, a review under this section may only be conducted where the vulnerable adult to whom the relevant decision relates is, or is suspected of being, at risk of serious abuse.

The clause makes procedural provision in respect of reviews, including the ability to explore the possibility of settling the matter, and also provides the Ombudsman with the ability to make reports and recommendations following a review.

41—Views of vulnerable adult to be heard

This clause requires a vulnerable adult to whom a review under proposed section 40 relates to be given a reasonable opportunity to personally present their views in relation to the review to the Ombudsman (unless the Ombudsman is satisfied that the vulnerable adult is not capable of doing so).

Part 6—Information gathering

42—Authorised officer may require information

This clause enables an authorised officer (by notice in writing) to require a specified person to provide to them such information, or such documents, as may be specified in the notice. The information or documents must be information or documents in the possession of the person that the authorised officer reasonably requires for the performance of functions under the measure, and the requirement can be made regardless of whether or not the person is a State authority.

43—Sharing of information between certain persons and bodies

This clause provides that the persons and bodies specified in proposed subsection (1) can share certain information and documents with each other in the performance of official functions relating to vulnerable adults.

44—No obligation to maintain secrecy

This clause provides that no obligation to maintain secrecy imposed on a person prevents the person from disclosing the information under the measure (however this section does not of itself displace the privileges and immunities contemplated by proposed section 53).

45—Interaction with Public Sector (Data Sharing) Act 2016

This clause provides that nothing in this proposed Part affects the operation of the Public Sector (Data Sharing) Act 2016.

Part 7—Miscellaneous

46—Obstruction of person reporting suspected abuse of vulnerable adults

This clause creates an offence for a person to prevent another from making a report under the Act, or hinder or obstruct them when doing so.

47—Obstruction of Director etc

This clause creates an offence for a person to hinder or obstruct the Director in the performance of their functions under the Act.

48—False or misleading statements

This clause creates an offence for a person to knowingly make a false or misleading statement in information provided under the Act.

49—Confidentiality

This clause creates an offence for a person engaged or formerly engaged in the administration of the Act to divulge or communicate personal information in the course of official duties, except in the circumstances specified.

50—Victimisation

This clause creates an offence for a person to victimise another on the ground, or substantially on the ground, that the other person or a third person has provided, or intends to provide, information under the Act.

51—Protections, privileges and immunities

This clause sets out protections, privileges and immunities enjoyed by persons in respect of the measure.

52—Service

This clause is a standard service provision.

53—Review of Act

This clause requires the Minister to cause an independent review of the operation of the Act to be conducted within 3 years of the commencement of this clause, and for a report of the review to be prepared and laid before Parliament.

54—Regulations

This clause is a standard regulation making power.

7—Amendment of long title

This clause amends the long title of the principal Act to reflect the changes made by this measure.

Schedule 1—Transitional provision

1—Application of certain provisions of Act limited during first 3 years of operation

This clause provides that the specified provisions of the principal Act, as amended by this measure, will only apply to vulnerable adults who are 65 or more years of age (or 50 or more years in the case of vulnerable adults who are Aboriginal or Torres Strait Islander people), or a vulnerable adult, or vulnerable adult of a class, declared by the Minister by notice in the Gazette.

Debate adjourned on motion of Hon. I.K. Hunter.

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